actual possession of the grantors, at the time of conveyance, is the question to be reviewed.

The twelfth section of our statute regarding lands, enacts, "that all deeds of bargain and sale, etc., of lands or tenements, of which the grantor is ousted, by the entry and possession of some other person, unless made to the person in actual possession, shall be void. And any person who shall attempt, by an instrument in writing under his hand, to alien any lands or tenements, of which he is ousted, and every person who shall receive such conveyance, not being in the actual possession of the lands or tenements attempted to be conveyed, shall forfeit one half of the value thereof," etc. We think a reasonable construction of this section of the statute will fully warrant the plaintiff in the recovery of the two parcels of land of which there was no ouster. The only purpose of the legislature in this enactment, was, to prevent the traffic in, and transfer of, disputed titles to land, and thus, in this particular, to prevent maintenance. The provision in this statute, that the deed shall be void, is only in affirmance of the common law, which disabled a grantor thus ousted, from transferring his title to another: Co. Lit. 265 a, note 1; 2 Bl. Com. 290. Those deeds, therefore, are only so far void or inoperative, as they are found opposed to this principle of the common law, and prohibited by the affirmatory provisions of the statute. The word "deed," in this section, was not used as signifying technically a sealed instrument, but only as equivalent to the words conveyance, transfer, sale, etc. Nothing more was meant than, that an ousted owner of land should not convey it. A similar construction by the court of king's bench was put upon the statute 26 Geo. III., c. 60. There had been an assignment, by way of mortgage, of certain ships; but it did not contain recitals of the certificates of registry, as required by the seventeenth section of that act, which declared, that for want of such recitals, such bill of sale should be utterly void, to all intents and purposes. It was holden, notwithstanding this omission, that a personal covenant of the mortgagor contained in the bill of sale or assignment was good; and that the mortgagor was liable to be sued upon it as a valid covenant for money lent: Kerrison v. Cole, 8 East, 231. And Le Blanc, J., in conformity to the views expressed by the other judges, says: "Where, therefore, the act says, that for want of certain requisites, such bill of sale shall be void, it means only, that such transfer of the property shall be void."

The propriety of this construction, we think, is confirmed, by

a recurrence to other provisions and language of the section under our consideration. In a subsequent part of it, the word conveyance is substituted for the word deed. So, too, the amount of the penalty or forfeiture is made to depend, not upon the value of the whole land embraced in the description of the lands attempted to be conveyed, but upon the value only of the lands of which the grantor is ousted. In the case of Van Dyck v. Van Beuren et al., 1 Johns. 344, the question here considered was suggested, and Thompson, J., said, that the judgment of law upon such a case, as he apprehended, would be to pronounce the deed inoperative as to the land held adversely, and good as to the residue. Tompkins, J., concurred in this opinion; and Kent, C. J., without denying the position, supposed the conveyance then under consideration could be supported for other reasons: 13 Vin. Abr. 58; Williams v. Jackson, 5 Johns. 500.

But here we are met, as the defendant believes, with a rule of law too well settled and imperative to admit the construction we have put upon this statute. It is contended, that, as the act of giving and receiving the conveyance of that parcel of land, of which the grantors were ousted, is made illegal and void, by statute, and is punished by forfeiture or penalty, the entire conveyance is void, and no effect can be given to the deed. And in support of this position, we are referred to a principle frequently found in elementary writers, and sometimes recognized in adjudged cases, "that if any part or subject-matter of a contract be contrary to a statute, the whole shall be invalid; for a statute is like a tyrant; where he comes he makes all void; but the common law is like a nursing father; it makes void only that part where the fault is, and preserves the rest:" 1 Mod. 35;' 11 Id. 94; Hob. 14; 1 Vent. 237; 2 Wils. 351; 1 Saund. 66," note 1; Pow. on Con. 199; Chit. on Con. 228. The frequency with which this position has been repeated, and the not unfrequent misapplication of it, may justify a brief examination of its history and character.

It is admitted, and indeed it is a part of the doctrine itself, that if part only of a divisible contract be illegal and void at the common law, such part only is void. Now we think it will be found difficult to suggest any very sensible reason, why the operation of a statute upon the same contract, should be so essentially different, as to make it entirely void. If part or the whole of a contract be illegal, can it make, in this respect, any essential

1. Maleverer v. Redshaw.

2. Hacket . Tilly.

3. Norton v. Simmes.
4. Mosdel v. Middleton.

5. Collins v. Blantern. 6. Butler v. Wigge.

difference, by what law it becomes so? Is it not as essentially illegal and void, if illegal at all, when so declared by common law, as when so pronounced by statute? If it is not, it must be because the common law, when well known and established, is not of imperative obligation. We first find this distinction alluded to in the case of Lee et Ux. v. Coleshill, Cro. Eliz. 529, in which, under a statute prohibiting the sale of offices, a bond had been given to perform certain covenants, some of which, by that statute, were void. In an action on the bond, the whole was adjudged void; and yet the defendant's counsel admitted, that in suit on the covenants, such as were good would have been sustained.

Most of the early cases, in which the distinction was taken between the operation of the statute law, and the common law, upon divisible contracts, were upon official bonds, taken in part, contrary to the provisions of the statute 23 Hen. VI.; and it has been in reference to the special provisions and language of that statute, that it has been likened to a tyrant. That statute prescribed the form of a bond to be taken by the sheriff, of a person arrested, and declared all others to be void. It is believed, that the assertion, that, if a part of a divisible contract be declared illegal, and made void by statute, the whole is void, was first distinctly made by Lord Hobart, in the strong language before recited, in the case of Norton v. Symmes, reported in Hobart, 14; and yet no such principle governed the decision of that case; for that was an action on a bond conditioned for the performance of covenants, some of which, if illegal at all, were made so by the common law; and there was, in that case, a recovery upon the good covenants. This case of Norton v. Symmes is referred to in Bac. Abr., tit. Sheriff, H, 2; and the author of that work does not understand the language of the chief justice there, as applicable to statutes generally, but only to the statute Hen. VI., which only was under his consideration; for he says: "For upon the statute 23 Hen. VI., c. 9, if a sheriff will take a bond for a point against that law and also for a due debt, the whole bond is void; for the letter of the statute is so." Lawrence, J., in the case of Kerrison v. Cole, views the matter in the same light, and in reference to it says: "There is indeed a distinction taken in Hob. 14, between an avoidance of an instrument by the common law, or by the statute law, that if it be void in part by the statute law, it is void for the whole, but that the common law only avoids so much of it as is bad, leaving the rest which is good; which distinction was alluded to, by Lord Chief Justice

Wilmot, in Collins v. Blantern, 2 Wils. 251. But these cases, when examined, are easily reconcilable, as in the case of sheriffs' bonds; which are only authorized to be taken with a certain condition, and therefore, if they be taken with any other condition, they are void in toto, and can not stand good in part only; but that does not apply to different and independent covenants in the same instrument, which may be good in part, and bad in part: Kerrison v. Cole, 8 East, 235.

And of the same import is the language of Sutherland, J., in the case of Mackie v. Cairns, 5 Cow. 564 [15 Am. Dec. 477]. He says: "Now I apprehend if a bond contains provisions which are declared illegal or void by statute, and other provisions which are legal, the whole bond will not be void unless the statute expressly provides that these illegal provisions shall render the whole bond void." We think this is the true principle; and that the general expressions to be found in the books apparently of a different import, should be understood and the doctrine of the cases confined to this explanation of the rule. And we understand nothing more than this was intended by the late chief justice of this court in giving our opinion in the case of Weeden v. Hawes, 10 Conn. 50. And so Mr. Chitty, in his treatise on contracts, evidently understands the principle; for after giving the rule in the supposed language of Lord Hobart, he continues: "But there are instances in which the invalidity of a part of a deed, by virtue of a statute, shall not destroy the whole; and the remainder being legal and distinct, shall stand, there being no express words in the act to render the whole void:" Chit. on Con. 228. The modern cases in the English courts, we think, have been determined in conformity with this principle, regardless of the unexplained distinction so loosely laid down by Lord Hobart. The case of Gaskell v. King, 11 East, 165, was an action of covenant, brought upon the covenants in a lease whereby the tenant bound himself to pay the property tax, and all other taxes imposed on the premises or on the landlord in respect thereof. This was illegal and void by stat. 46 Geo. III., c. 65; and yet it was holden that this would not avoid a separate covenant in the same lease for the payment of rent, clear of all parliamentary taxes generally, which was a good covenant. So, too, in the case of Thompson v. Pitcher, 6 Taunt. 359, it was held that if there be in a deed one limitation to a charitable use, illegal and void by stat. 9 Geo. II., c. 36, yet this would not avoid other limitations in the same deed which were good: Doe d. Thompson v. Pitcher et al., 3 Mau. & Sel. 407;

Wigg v. Shuttleworth, 13 East, 87; Howe v. Synge, 15 Id. 440; Readshaw v. Balders, 4 Taunt. 57; Fuller v. Abbott, Id. 105; Tinckler v. Prentice, Id. 549.

In cases arising under the statute of frauds and perjuries, as well as under other statutes, it has been often holden, that if one part of an entire and indivisible contract be void, it is void in toto; recognizing certainly a different doctrine as being applicable to cases of contracts, like the one under consideration, very distinctly divisible in its character: Chater v. Beckett, 7 T. R. 197;' Crawford v. Morell, 8 Johns 253; Maxfield v. Wadsley, 3 Barn. & Cress. 357;' Blinn v. Negus,38 Mass. 46; Beach v. Walker, 6 Conn. 190.

The defendant seemed to place some reliance upon the circumstance that the statute under consideration affixes a penalty or forfeiture to the act of buying and selling pretended titles. This does not add to the illegality of the act; it is intended only to prevent its commission. Here is nothing malum in se; but only a regulation suggested by motives of policy; and superadding the forfeiture does not render the act more invalid. Cases of fraud and usury are very clearly distinguishable from the present. Actual fraud vitiates all contracts in which it is found. This has been settled, as much, perhaps, for reasons of public policy peculiarly applicable to cases of fraud, as from regard to other considerations derived from the principles of the common law. In Fermor's case, 3 Co. 78, it is said: "The com mon law doth so abhor fraud and covin, that all acts, as well judicial as others, and which of themselves are just and lawful, yet being mixed with fraud and deceit, are, in judgment of law, wrongful and unlawful." Contracts infected with usury stand very much upon the same ground; and for good reasons, it has been supposed necessary to tear away all disguises from the infinitely various devices to which resort has been had to cover up usury and give effect to fraud. And this could in no more effectual way be done than by declaring contracts to be entirely void in which such illegality has been discovered: Hyslop v. Clark, 14 Johns. 458; Austin v. Bell, 20 Id. 447; Mackie v. Cairns, Hop. Ch. 373; Weeden v. Hawes, 10 Conn. 50. And many of the stat

utes on these subjects have in terms so provided.

We think, therefore, that there is no principle of the common law applicable to this case which ought to persuade us to give a different effect to these deeds from that given to them by the superior court; and we can not advise a new trial.

1. 7 T. R. 201.

2. Mayfield v. Wadsley.

3. Bliss v. Negus,